March 21, 2006
Tuesday

We are a nation of leaders who like to remind the world that the genius of the American legal system is the consistency of its application of the law and the even-handedness of its judicial punishment.

That foundation is being put to a bizarre and implausible test in the death penalty trial of Zacarias Moussaoui. And most recently, the government's argument has been shaken by the latest testimony of one of the government's own witnesses, FBI agent Harry Samit.

The more the FBI agent testified in the federal court in Alexandria, Va., the less solid the government's case seemed to be. For the core of the government's reasoning is that Moussaoui should be put to death by lethal injection because of his failure to tell the authorities what he knew about al Qaeda's plans that resulted in the 9/11 attacks.

(Moussaoui is an admitted al Qaeda operative and would-be major terrorist. He pleaded guilty to conspiracy to hijack an airplane; he says his role would have been to fly the plane into the White House; but not in the 9/11 plot.)

Comes now FBI agent Samit, testifying he told his FBI superiors more than 70 times that Moussaoui was an al Qaeda terrorist, but they did not act to prevent 9/11. Samit says he told his superiors he believed Moussaoui planned to hijack an airplane for a terror mission and that his FBI superiors frustrated his every effort to obtain warrants to search Moussaoui's computer and other possessions. In other words, his FBI superiors all failed to act when they could have prevented the 9/11 attacks.

Consistency of law and even-handedness of punishment leads us to one concluding question that is absurd at one level, but goes to the heart of what all this is about: Do the federal prosecutors also want to argue that all the FBI officials who failed to act on info they had also deserve to be put to death?

Of course not, but just asking it focuses the minds of all who are proud to live in a nation of laws.

(We pause for a bungle-bunching recap: This case is under the direction of government lawyers who figured an agent still-fuming about his superiors' failures to act would be a great witness for the prosecution - assisted by a government lawyer, Carla Martin, who nearly blew up the prosecution's case by coaching sequestered government witnesses. The way this is trending, they will soon all be promoted to the White House senior staff. But I do not mean that to be as demeaning to the prosecutors as you think it is.)

Even before FBI agent Samit testified, the judge in the case, U.S. District Judge Leonie M. Brinkema, warned the prosecutors that their case had reached a "legal morass." The judge said the federal prosecutors were on the verge of basing their entire case on an unsustainable legal contention - that a failure to act, rather than an overt act, can be grounds for execution. "I don't know of a case where failure to act ... is the basis for the death penalty," said the judge.

That is why the prosecutors came up with a thin-thread of rationale in the hopes of convincing a jury to vote unanimously for death by lethal injection. The rationale: Moussaoui did commit an overt act, after all - he lied to officials when arrested in his immigration case; if he'd told the truth, it could have prevented 9/11.

Now, let's be clear about one thing: This column is no bleeding heart wail against capital punishment. I favor executing those who commit the most heinous crimes when their guilt is certain beyond any doubt. For instance, Sirhan Sirhan, who assassinated of Sen. Robert Kennedy in Los Angeles before the eyes of the entire world. I cringe every time he comes up for parole. Sirhan deserved to die; but the death penalty was off the table in that 1968 case. Life in prison without parole should have been his best fate.

But America cannot allow itself to become a nation that slips a thin-thread rationale through the eye of a needle, to use it into an instrument of governmental lethal injection. It's even worse when it's done by Uncle Sam, with a wink seen 'round the world. Especially by a world that has just seen iconic images from Abu Ghraib and Guantanamo that seem to portray an America we thought the world would never see because we never believed it could possibly exist.

America is greater than that. Life without parole is bad enough for Zacarias Moussaoui and good enough for us.

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